Lawrence v. Smith

• Decision Date: 24 May 1906
• Docket Number: 304
• Citation: 64 A. 776,215 Pa. 534
• Parties: Lawrence, Appellant, v. Smith
• Court: Pennsylvania Supreme Court

64 A. 776

215 Pa. 534

Lawrence, Appellant, v. Smith

No. 304

Supreme Court of Pennsylvania

May 24, 1906

Argued January 30, 1906

Appeal, No. 304, Jan. T., 1905, by plaintiff, from order of C.P. Montgomery Co., March T., 1905, No. 166, striking off judgment in case of William P. Lawrence v. Bernard Smith. Reversed.

Scire facias sur mortgage.

Rule to open judgment. Before WEAND, J.

The writ was issued April 11, 1903, returnable May 11, 1903, and was duly served upon the defendant, who was mortgagor and real owner.

On April 17, 1905, judgment was entered against the defendant by default for want of an appearance.

On May 15, 1905, the executors of the defendant presented a petition averring that defendant had died on November 30, 1904 (about five and one-half months before the entry of judgment, and a little over a year and a half after the return day of the writ which was served upon him), asking to have the judgment and all proceedings thereon stricken off, because the said Bernard Smith was dead at the time the judgment was entered and the petitioners were not made parties to the action.

On this petition a rule was granted to show cause why the judgment should not be opened, and later a rule to strike off.

After argument the court made the rule to strike off absolute.

Error assigned was the order of the court striking off the judgment.

The judgment is reversed with leave to the court to reinstate the rule to open.

Neville D. Tyson, with him L. L. Smith, for appellant. -- The judgment was regular on its face and could not be stricken off: Warder v. Tainter, 4 Watts, 270; Hartman v Ogborn, 54 Pa. 120; Hopkins v. Weigglesworth, 2 Lev. 38; Taylor v. Young, 71 Pa. 81; Breden v. Gilliland, 67 Pa. 34; Adams v. Grey, 154 Pa. 258; North v. Yorke, 174 Pa. 349; Bradshaw Electro Sanitary Odor Co. v. Bradshaw, 27 Pa.Super. 196.

W. Henry Sutton, of W. Henry Sutton & Son, for appellee. -- The practice in the court of common pleas in the county of Philadelphia, as well as other counties, has been to set aside a fi. fa. and strike off judgment where the defendant is dead: England v. Kelly, 3 W.N.C. 156; Gordon v. Bartley, 4 W.N.C. 37; Warder v. Painter, 4 Watts, 270. This practice is also approved in the Superior Court in the case of: Stevenson v. Virtue, 13 Pa.Super. 103.

The judgment was entirely irregular, but the record upon its face was free from error and the petitioners had but one course to pursue, which was to present their petition to the court below setting forth the facts and praying that the judgment be stricken off; see also Sleeper v. Hickey, 26 Pa.Super. 59. Hurst v. Fisher, 1 W. & S. 438, shows the old practice to have been by plea of abatement: Lanning v. Pawson, 38 Pa. 480.

Before MITCHELL, C.J., BROWN, MESTREZAT, POTTER and STEWART, JJ.

OPINION

MR. CHIEF JUSTICE MITCHELL:

The only question really involved in this case is the technical one of the form of the remedy. The judgment having been entered after the death of the defendant was voidable, but the fact of the death not appearing on the record the judgment was regular on its face and could not be struck off on rule. The law is correctly stated in the opinion of the learned judge below, but it was technically misapplied in striking off the judgment. The distinction between striking off and opening a judgment is clear and absolutely settled. "It is true that in proceedings upon a recorded mortgage there is not much practical difference between striking off and opening a judgment. The judgment in such cases neither creates nor continues the lien. It is nevertheless important to observe the distinction in practice in all cases. A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record, a motion to open it is an appeal to the equitable power of the court to let the defendant into a defense." SHARSWOOD C.J., O'Hara v. Baum, 82 Pa. 416. And by the same judge in Breden v. Gilliland, 67 Pa. 34 "opening a judgment and striking it off are two entirely different things. No court has power to strike off a judgment regular on its face. If there is a fact which ought but did not appear of record, which would render it irregular -- as for example as is alleged here, a point of law reserved at the trial -- that fact should have been put upon the record by an amendment nunc pro tunc." By the expression that a fact which ought but did not appear of record should be put upon it by amendment nunc pro tunc, the court meant a fact which could regularly be the subject of amendment by the case as it was at the time of judgment, a fact which though not on the record could be regularly put there on the basis of something that was really a part of the record though omitted. Thus in that case there was judgment on a verdict for plaintiff but the court struck it off as was claimed, by virtue of a point reserved at the trial. This court held that the striking off...